Howard v. Adams

Cite as 2016 Ark. App. 222

ARKANSAS COURT OF APPEALS

DIVISION III
CV-15-163
No.

GARY HOWARD, INDIVIDUALLY OPINION DELIVERED: APRIL 27, 2016
AND AS ADMINISTRATOR OF THE
ESTATE OF ODIS HOWARD, APPEAL FROM THE BENTON COUNTY
DECEASED CIRCUIT COURT
[NO. P2003-461-5]
APPELLANT
HONORABLE XOLLIE DUNCAN,
V. JUDGE

LAUREN ADAMS, DON BRADY,
TODD MAZZANTI, AND ADAMS &
BRADY & JACKSON, PLLC AFFIRMED
APPELLEES

ROBERT J. GLADWIN, Chief Judge

This is the fourth appeal in a long-standing dispute between appellant Gary Howard,

acting individually and as administrator of the estate of his late father, Odis Howard, and

appellee Lauren Adams and her law firm (collectively “Adams”). 1 In the present case, Gary

appeals from an order denying partition of the estate’s real property and from a decree

foreclosing Adams’s attorney-fee lien. We affirm the circuit court’s rulings.

The lengthy history of this case is set forth in our previous opinions, so we offer only

an abbreviated version of the facts. Adams represented Gary in a lawsuit, which was decided

The previous appeals are Howard v. Adams, 2009 Ark. App. 621, 332 S.W.3d 24
1

(Howard I); Howard v. Adams, 2012 Ark. App. 562, 424 S.W.3d 337 (Howard II); Adams v.
Howard, 2014 Ark. App. 328, 436 S.W.3d 473 (Howard III).
 Cite as 2016 Ark. App. 222

in his favor in 2005. The successful outcome resulted in forty-six acres of property being

removed from a family trust and placed into the Odis Howard estate, of which Gary was

the administrator and sole beneficiary.

Thereafter, a disagreement arose between Gary and Adams over attorney’s fees.

Adams sought fees equal to one-third of the value of the forty-six acres; Gary denied that

Adams was entitled to a contingency fee. The stalemate led to Adams filing an attorney-fee

lien on the forty-six acres and a claim against the estate for thirty-three percent of the value

of the property. Gary responded by suing Adams in August 2005 for breach of contract,

fraud, and negligence.

In February 2007, the circuit court ruled that Adams’s attorney-fee lien against the

forty-six acres was properly in place. However, the court allowed Gary to pursue his causes

of action against Adams in an attempt to offset the amount of the lien. The case went to

trial, and the jury found in favor of Adams, resulting in no offsets against her lien claim.

After trial, the circuit court awarded Adams $50,502.50 in attorney’s fees for the work of

her personal lawyer, Tamra Cochran. Gary appealed, and we affirmed the jury’s verdict. See

Howard II. However, we remanded Cochran’s fee for recalculation, resulting in a reduction

to $30,030. Id.

Subsequently, Adams filed a petition in circuit court to foreclose her attorney-fee

lien on the forty-six acres. She claimed that, because the property was worth approximately

$1.8 million when she recovered it in 2005, she was entitled to one-third of that amount,

or $613,333, from the sales proceeds of the property. The circuit court disagreed and, in a

2
 Cite as 2016 Ark. App. 222

July 2013 order, ruled that Adams’s fee would be calculated based on one-third of whatever

price the property brought at a future sale. We affirmed the court’s ruling in Howard III.

Following our decision in Howard III, Adams filed another foreclosure petition,

which is the subject of the present appeal. Therein, Adams asked the circuit court to order

the forty-six acres sold at a judicial sale and to use the sales proceeds to satisfy her attorney-

fee lien and pay the $30,030 she owed Cochran. Gary resisted the petition on various

grounds and asked the court to partition the property between the estate and Adams instead

of selling it. The court denied Gary’s request for partition and entered a foreclosure decree.

The decree ordered the forty-six acres sold by the commissioner of the court; declared that

Adams would have first priority in one-third of the sales proceeds to satisfy her attorney-fee

lien; and declared that, after certain offsets, Adams would have second priority in the

proceeds to pay $18,529.09 in fees to attorney Tamra Cochran. 2 The remaining balance of

the proceeds was earmarked for the court registry to await further rulings. Gary now appeals

from the foreclosure decree and from the order denying his request for partition. He raises

six arguments for reversal.

I. Exclusion of Evidence

At the foreclosure hearing, Gary called real-estate agent Steve Fineberg to testify that

a public sale of the forty-six acres would bring a lower price than a private sale. Fineberg

was also expected to testify about Gary’s efforts to sell the property on the open market and

the possibility of a future private sale. According to Gary, Fineberg’s testimony was necessary

The court deducted from the original $30,030 owed to Cochran certain appeal costs
2

awarded to Gary following our decision in Howard II.

3
 Cite as 2016 Ark. App. 222

to prove that the forty-six acres should not be sold. See Ark. Code Ann. § 28-51-103(e)(1)

(Repl. 2012) (requiring a personal representative to show cause why he should not sell

property to satisfy a claim against the estate). The circuit court deemed Fineberg’s testimony

irrelevant, and Gary made the following proffer, through counsel:

At this time, I’m making a proffer of evidence that Steve Fineberg would have
testified about the efforts he made to sell the property. The reason it was priced the
way it was, the reduction in price of the property to . . . 1,300,000; that there is
someone who wants to buy the property, but they can’t make an offer until the very
beginning of the year. He will also testify that the market for – or the sale of
commercial property has suffered, because of the recession. But, Northwest Arkansas
has recovered from the recession and is now on the up and that’s based not only on
his own opinion, but on sales of commercial property in the area.

Gary now argues that the circuit court erred in refusing to hear Fineberg’s testimony.

We will not reverse a circuit court’s evidentiary ruling absent an abuse of discretion.

Howard II, supra. Furthermore, error may not be predicated on an evidentiary ruling unless

a substantial right is affected and the appellant is prejudiced by the ruling. Jones v. Coker, 90

Ark. App. 151, 204 S.W.3d 554 (2005).

Gary has not demonstrated prejudice that would require reversal. The circuit judge

stated that, even without the benefit of Fineberg’s testimony, she knew that a judicial sale

normally yields less money than a private sale. Further, Gary himself testified that he had

attempted to sell the property through real-estate agents and that he had a possible buyer in

mind who might make a future offer. We also observe that the circuit judge has presided

over this matter for several years, during which numerous pleadings have been filed and

many arguments made regarding Gary’s efforts to sell the property. Fineberg’s testimony,

therefore, would have added little to the court’s deliberative process on the question of

4
 Cite as 2016 Ark. App. 222

whether to order a public sale of the property. Consequently, there is no reversible error in

the court’s evidentiary ruling.

II. Treating Gary and the Estate as One Entity

Gary’s argument on this issue is virtually impossible to follow, and we are therefore

reluctant to address it. See generally Satterlee v. State, 289 Ark. 450, 711 S.W.2d 827 (1986)

(declining to consider points that are incomprehensible and lacking in convincing authority

or argument). However, as best we can determine, Gary contends that the award to Adams

for the fees of her personal attorney, Tamra Cochran, was an obligation to be borne by him

individually rather than as administrator of the estate.

We see no express language in the circuit court’s order making Gary personally

responsible for the Cochran fees. Moreover, the caption of the court’s fee order lists Gary’s

name in both his individual and representative capacities. In the absence of a more persuasive

argument, we affirm on this point.

III. Judicial Sale of the Property

Gary argues next that the circuit court erred in ordering a judicial sale of the forty-

six acres. He reiterates that the property would bring a better price at a private sale. We see

no error.

Gary has tried and failed for nearly ten years to sell the property on the open market.

Meanwhile, Adams’s lien has gone unsatisfied. Thus, even if Gary is correct that a private

sale would bring a higher price, and even if his previous attempts to sell the property have

been genuine, we do not fault the circuit court for ruling that, at this point, a judicial sale is

in order.

5
 Cite as 2016 Ark. App. 222

Given the circumstances, we affirm the circuit court’s decision to order the forty-six

acres sold by the commissioner of the court.

IV. Partition

For his next assignment of error, Gary contends that the circuit court should have

partitioned the forty-six acres, one-third to Adams and two-thirds to the estate, rather than

selling it. We disagree.

Generally, in order to partition real property, it must be held in cotenancy. See Ark.

Code Ann. §§ 18-60-401(a) & 403 (Repl. 2015). Gary acknowledges this but insists that

Adams has been treated throughout this case as though she had an ownership interest in the

property. This is a mischaracterization of the facts. Adams has been treated as a claimant

who has a lien on real estate. Gary has not persuaded us that Adams’s status as a lienholder

is the equivalent of being a cotenant in the forty-six acres. We therefore affirm the court’s

refusal to partition the property.

V. Priority of Claims

Under this heading, Gary argues that Adams cannot recover on her lien until the

estate’s administration expenses are paid. He cites Arkansas Code Annotated section 28-50-

106(a) (Repl. 2012), which gives the costs and expenses of administration priority over

claims against the estate when the assets of the estate are insufficient to pay all claims. As

explained hereafter, there is no basis for reversal.

An attorney’s lien is an interest in the judgment of which the attorney cannot be

deprived. Froelich v. Graham, 349 Ark. 692, 80 S.W.3d 360 (2002). The lien is created on

the day that the client’s action is filed and operates as a security in favor of the attorney. See

6
 Cite as 2016 Ark. App. 222

id. The lien takes priority over debts that the client owes to other creditors. Id. Further, the

lien attaches to any judgment or the proceeds thereof “in whosoever’s hands they may

come.” Ark. Code Ann. § 16-22-304(a)(1) (Supp. 2015). In light of these authorities, it is

clear that Adams enjoyed a lien on a specific tract of property—the forty-six acres—even

after it became part of the estate. She could therefore enforce her lien and foreclose upon it

as recourse for the payment of her fee. See generally Ark. Code Ann. § 28-50-109(e)(5)(A)

& (C) (providing that, with regard to secured claims, the property constituting the security

may be sold and the proceeds applied to pay the secured claim, prior to paying the personal

representative).

We also note that the validity of Adams’s lien, her right of foreclosure, and her right

to one-third of the sales proceeds from the forty-six acres has been established by the law of

the case. In 2007, the circuit court declared the validity of Adams’s attorney-fee lien, and in

2013, the court ruled that Adams could foreclose on the lien and receive one-third of the

future sales proceeds from the property. Two opinions from our court have affirmed those

rulings. See Howard III, supra; Howard II, supra. The law-of-the-case doctrine therefore

prohibits reconsideration of these issues of law and fact that have already been decided in a

prior appeal, or that might have been but were not presented. See Hayes v. Otto, 2015 Ark.

App. 228.

Accordingly, we affirm the circuit court’s decision to grant priority to Adams’s

attorney-fee lien in the sales proceeds of the forty-six acres. 3

3
Gary does not make a persuasive argument or cite authority regarding the priority
given to the Cochran fee award. Consequently, we do not address that topic. See Louisiana
v. Joint Pipeline Grp., 2010 Ark. 374, 373 S.W.3d 292.

7
 Cite as 2016 Ark. App. 222

VI. Findings of Fact and Conclusions of Law

Before the circuit court entered the foreclosure decree, Gary filed a motion for

specific findings of fact and conclusions of law pursuant to Ark. R. Civ. P. 52(a) (2015).

The court’s subsequent decree, as entered, set forth findings of fact and conclusions of law,

although not the precise findings and conclusions that Gary had requested. Gary now argues

that the court failed to comply with Rule 52(a). We disagree.

Rule 52(a) does not impose a severe burden on the trial judge; the judge need only

make brief, definite, and pertinent findings of fact and conclusions upon the contested

matters. Centerpoint Energy Gas Trans. Co. v. Green, 2012 Ark. App. 326, 413 S.W.3d 867.

The court need not explain why it found the facts the way it did or give detailed reasons

for its decision. Id. Rather, the findings should be specific enough to enable the appellate

court to understand the factual basis and analytical process by which the trial court reached

its decision. Id. The rule does not require specific findings on each and every factual question

arising in the lawsuit. Weathersbee v. Wallace, 14 Ark. App. 174, 686 S.W.2d 447 (1985).

Here, the circuit court addressed the relevant issues, and the basis for its rulings is

clear. We therefore see no purpose to be served by a remand on this issue.

Affirmed.

VIRDEN and VAUGHT, JJ., agree.

Harry McDermott, for appellant.

Tamra Cochran, P.A., by: Tamra Cochran, for appellees.

8